Selecting the next Colorado Supreme Court justice(s) post-Mullarkey retirement and retention elections – who decides?

One of the most frequent questions posed by Colorado citizens when they become aware of their constitutional right to vote “NO” on the unjust justices of the Colorado Supreme Court who must face the voters this November is: “what next?”  What happens after we vote them out, or if they quit?

Since We The People do not vote for their replacements, who gets to decide?

Misconceptions, misunderstanding, and misinformation about the process for selecting the judicial branch officeholders in Colorado is (unfortunately) all too common – largely a result of the lack of attention paid to the issue by the mass media, who frequently prefer to focus on the “horse race” aspects of political competition instead of informing the public.  Part of the Clear The Bench Colorado mission is to contribute to informing the electorate about their constitutional rights to hold the judiciary accountable via the retention election process – and what follows.

First, unlike the process for selecting U.S. Supreme Court justices, there is NO role under Colorado’s “merit selection” process for the legislative branch to provide a check or balance to executive power via “advice and consent.”  The legislature does not weigh in on the process in any formal or legal way (although individual legislators may make their thoughts known to the governor, who has the final say).

Instead, the “front-end” check is provided by an appointed Judicial Nominating Commission, as described in this entry in the Judgepedia website:

The Supreme Court Nominating Commission recommends candidates to serve as judges for the Supreme Court and the Court of Appeals. The chief justice of the Supreme Court chairs the commission and is a non-voting member. This commission includes one citizen admitted to practice law in Colorado and one citizen not admitted to practice law residing in each of the state’s seven congressional districts, and one additional citizen not admitted to practice law in Colorado.[1]

Commission members serve six-year terms. Non-lawyers, who are the majority of every nominating commission, are appointed by the governor. Lawyer members are appointed by joint action of the governor, attorney general, and chief justice.

Not noted in the Judgepedia article, but specified under the constitutional language (Article VI, Section 24 Judicial nominating commissions) is a requirement for some partisan balance on the commission:

(2) The supreme court nominating commission shall consist of the chief justice or acting chief justice of the supreme court, ex officio, who shall act as chairman and shall have no vote, one citizen admitted to practice law before the courts of this state and one other citizen not admitted to practice law in the courts of this state residing in each congressional district in the state, and one additional citizen not admitted to practice law in the courts of this state. No more than one half of the commission members plus one, exclusive of the chief justice, shall be members of the same political party.

Although not widely known, the members of the commission are a matter of public record (as appointed officials).  Law Week Colorado recently published an informative summary (including brief bios) of the current members of the state Supreme Court Nominating Commission (“Meet The People Who Will Help Choose Mullarkey’s Successor“), who can now look forward to several busy weeks reviewing applicants for the state’s highest court.  The commission reviews applications (in theory, based on qualifications and “merit”) and submits a list of three names from which the governor can select to fill a vacancy.

Under the Colorado Constitution, Article VI (Judiciary), Section 20:

Vacancies. (1) A vacancy in any judicial office in any court of record shall be filled by appointment of the governor, from a list of three nominees for the supreme court… such list to be certified to him by the supreme court nominating commission for a vacancy in the supreme court

Article VI, Section 25 of the Colorado Constitution defines the process by which vacancies are created via the judicial retention election process:

Section 25. Election of justices and judges. A justice of the supreme court or a judge of any other court of record, who shall desire to retain his judicial office for another term after the expiration of his then term of office shall file with the secretary of state, not more than six months nor less than three months prior to the general election next prior to the expiration of his then term of office, a declaration of his intent to run for another term. Failure to file such a declaration within the time specified shall create a vacancy in that office at the end of his then term of office. Upon the filing of such a declaration, a question shall be placed on the appropriate ballot at such general election, as follows:

“Shall Justice (Judge) …. of the Supreme (or other) Court be retained in office? YES/…./NO/…./.”   If a majority of those voting on the question vote “Yes”, the justice or judge is thereupon elected to a succeeding full term. If a majority of those voting on the question vote “No”, this will cause a vacancy to exist in that office at the end of his then present term of office.

Newly appointed justices “shall hold office for a provisional term of two years and then until the second Tuesday in January following the next general election” after which they enjoy 10-year terms:

Section 7. Term of office. The full term of office of justices of the supreme court shall be ten years.

Colorado Supreme Court Chief Justice Mary Mullarkey- facing a “tough fight” to retain her office in the upcoming retention elections this November – neatly sidestepped the provisions of Section 25 (and the possibility that her replacement might be appointed by the new governor) by declaring her intent to retire, with an effective date of November 30th.  Since the list of replacement names “shall be submitted by the nominating commission not later than thirty days” after the vacancy is effective (in Mullarkey’s case, the day of/after her retirement), her action guaranteed that her replacement will be selected by lame-duck Governor Ritter (a gift of one lame duck to another, it would appear).

Chief Justice Mullarkey’s announced retirement does not change the fact that We The People retain the right to Clear the Bench – we can still exercise our right to vote “NO” this November on the four (er, three remaining) ‘unjust justices’ of the Colorado Supreme Court’s “Mullarkey Majority”- (Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your home or business against seizure via eminent domain abuse, your right to be fairly represented in the legislature and Congress, and your right to enjoy the benefits of the rule of law, instead of suffering under rule by activist, agenda-driven “justices.”  Continue to support Clear The Bench Colorado with your comments (Sound Off!) and your contributions – and vote “NO” on giving these unjust justices another 10-year term!

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